conflict of laws Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a Legal case, case, Transactional law, transaction, or other occurrence that has connections to more than one jurisdiction."Conflict o ...

, the term (

Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively referred to as Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, much of it stems from English. Law Latin may also be see ...

for "the law of the place") is a shorthand version of the

choice of law Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in ...

rules that determine the (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1991), p. 630.

General principles

When a case comes before a

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

, if the main features of the case (particularly the parties and the causes of action) are local, the court will then apply the ', the prevailing

municipal law Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. It encompasses the laws enacted by national, state, or local governments and is concerned with regulating the behavi ...

, to decide the case. However, if there are "foreign" elements to the case, the court may then be obliged, under conflict of laws, to consider whether it has

jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

to hear the case (see

forum shopping Forum shopping is a Colloquialism, colloquial term for the practice of litigants taking actions to have their legal case heard in the court they believe is most likely to provide a favorable judgment. Some jurisdiction (area), jurisdictions hav ...

). The court must then characterise the issues to allocate the factual basis of the case to its relevant legal classes. The court may then be required to apply the

rules to decide the ', the law to be applied to each cause of action. Relevant rules include the following.

'

' (

Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

for "law of the cause"), in

, is the law chosen by the forum court from the relevant

legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...

s when it judges an

international International is an adjective (also used as a noun) meaning "between nations". International may also refer to: Music Albums * ''International'' (Kevin Michael album), 2011 * ''International'' (New Order album), 2002 * ''International'' (The T ...

or interjurisdictional

case Case or CASE may refer to: Instances * Instantiation (disambiguation), a realization of a concept, theme, or design * Special case, an instance that differs in a certain way from others of the type Containers * Case (goods), a package of relate ...

. It refers to the usage of particular local laws as the basis or "cause" for the ruling, which would itself become part of referenced legal canon. Conflict of laws regulates all

lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...

s involving foreign law if the outcome of a legal action would differ by the laws applied. Once the forum court has ruled that it has

to hear the case, it must then decide which possible law is to be applied.

'

The ' (or, sometimes, ') is the

term for the "law of the place of insolvency proceedings" relating to

cross-border insolvency Cross-border insolvency (sometimes called international insolvency) regulates the treatment of financially distressed debtors where such debtors have assets or creditors in more than one country. Typically, cross-border insolvency is more concer ...

. It is also sometimes used more generally in relation to the distribution of a limited fund within the control of the court.

'

The ' or ' is the

term for "law of the domicile" in the

. Conflict is the branch of

public law Public law is the part of law that governs relations and affairs between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that ...

regulating all

s involving a "foreign" law element where a difference in result will occur depending on which laws are applied.

'

' (

: the law of the forum) is a

rule. If applicable, it provides that the law of the

venue A venue is the location at which an event takes place. It may refer to: Locations * Venue (law), the place a case is heard * Financial trading venue, a place or system where financial transactions can occur * Music venue, place used for a conce ...

in which a legal action is brought applies. When a court decides that it should, by reason of the principles of

conflict of law Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction."Conflict of Laws", ''Black's Law Diction ...

, resolve a given legal dispute by reference to the laws of another jurisdiction, the ', the ' still governs procedural matters.

'

In the

, ' or ' is the law of the place where the act occurred that gave rise to the legal claim. This is often confused with ' which is where the tort is committed. While typically they both point to the same location, in the case of product liability, for example, the ' would be the place of manufacturing, while the ' would be the place of injury.

'

The ' is the

term for "law of the place where

arbitration Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision. The third party neutral (the 'arbitrator', 'arbiter' or 'arbitral tribunal') renders the decision in the form of an 'arbitrati ...

is to take place" in the

. Conflict is the branch of

regulating all

s involving a "foreign" law element where a difference in result will occur depending on which laws are applied. When a case comes before a

and all the main features of the case are local, the court will apply the ', the prevailing municipal

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider: *whether the forum court has

to hear the case (see the problem of

); *it must then characterise the issues (i.e., allocate the factual basis of the case to its relevant legal classes); and *then apply the

rules to decide which law is to be applied to each class. The ' is an element in the choice of law rules applied to cases testing the validity of a

contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...

. As an aspect of the

public policy Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...

of freedom of contract, the

parties A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature ...

to an agreement are free to include a

forum selection clause In contract law, a forum selection clause (sometimes called a dispute resolution clause, choice of court clause, governing law clause, jurisdiction clause or an arbitration clause, depending on its form) in a contract with a conflict of laws ...

or a

choice of law clause In contract law, a choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction. It determi ...

and, unless there is a lack of

bona fides In human interactions, good faith () is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case with , which is ...

, these clauses will be considered valid. If there is no express selection of a

proper law The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws. When the jurisdiction is in dispute, one or more state laws will be relevant to the decision-making process. If the laws are the s ...

, the courts will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a specific geographical location. For these purposes, one of the "forums" that may be selected is arbitration. Hence, the fact that the parties have chosen a

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

as the place of arbitration is an indication that parties may have intended the local law to apply. This indication will be weighed alongside other connecting factors. The state that has the largest number of connecting factors will be the ' applied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate to performance will be given a greater weighting.

'

' is a

term for a legal principle in

English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality bef ...

, roughly translated as "the law of the land (') where it was celebrated". It refers to the validity of the union, independent of the laws of marriage of the countries involved: where the two individuals have legal nationality or citizenship, or where they live (reside or are domiciled). The assumption under the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

is that such a marriage, when lawfully and validly celebrated under the relevant law of the land, is also lawful and valid.

British legal tradition

In the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...

, the jurisdiction of England, or England and Wales, as well as in many other legal jurisdictions largely or partly following the British tradition of jurisprudence, in addition to their modified local versions of the English common law, the legal principle behind the legal term was modified, qualified and further elaborated, both by legal developments in the common law ( Lord Dunedin's '' Berthiaume v D'Astous'' case ( HL 1930) ( AC 79), in which Dunedin in the

Appellate Committee of the House of Lords In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying an ...

ruled that "If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceedings or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremonial proceedings if conducted in the place of the parties’ domicile would be considered a good marriage"), as well as by codification by Statute ( Foreign Marriage Act 1892, 55 & 56 Vict., ''Chapter 23''). Under the English common law, whether a party needs to be present is treated as a formality of the marriage ceremony, so if a

proxy marriage A proxy wedding or proxy marriage is a wedding in which one or both of the individuals being united are not physically present, usually being represented instead by other persons (proxies). If both partners are absent, this is known as a double pro ...

is valid by the law of the place where the marriage was celebrated then it will be recognised in England.

'

In the

, the ' is the

term for "law of the place where the contract is made".

'

The ' or ' is the

term for "law of the place where the delict ortwas committed" in the

. Conflict of laws is the branch of law regulating all

s involving a "foreign" law element where a difference in result will occur depending on which laws are applied. The term is often shortened to '.

' (Schutzlandprinzip)

' (Latin: " helaw of the place where the protection is laimed) is a

rule applied to cases concerning the infringement of

intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...

(IP) rights, such as

copyright A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...

s or

patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...

s. It stipulates that the law applied to such cases is the law of the ''locus protectionis'', that is, the law of the country for which legal protection for the intellectual property is claimed. Consequently, the law of the country where the intellectual property was created or registered is not applied. ' is generally accepted as the prevailing choice of law rule for IP rights, at least as concerns the existence, validity, scope and duration of the rights. Article 8 (1) of the

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...

Rome II Regulation The Rome II Regulation (EC) N864/2007is a European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations. From 11 January 2009, the Rome II Regulation created a harmonised set of rules within the Euro ...

codifies it as follows:

' (or ')

' (

for "law of the place where the property is situated"), or simply ', is the doctrine that the law governing the transfer of title to property is dependent upon and varies with the location of the property, for the purposes of the

. Conflict is the branch of

regulating all

s involving a "foreign" law element if a difference in result will occur, depending on which laws are applied.

'

' (

: "law of the place of performance"), in

, is the law applied in the place of an event. ' is one of the possible choice of law rules applied to cases that test the validity of a

or that deal with a

tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...

. For example, if a person domiciled in

Bolivia Bolivia, officially the Plurinational State of Bolivia, is a landlocked country located in central South America. The country features diverse geography, including vast Amazonian plains, tropical lowlands, mountains, the Gran Chaco Province, w ...

and a person habitually resident in

Germany Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...

make a contract by e-mail and agree to meet in

Arizona Arizona is a U.S. state, state in the Southwestern United States, Southwestern region of the United States, sharing the Four Corners region of the western United States with Colorado, New Mexico, and Utah. It also borders Nevada to the nort ...

to research a book, there would be several possibly-relevant choice of law rules: * the ', ' or the law of habitual residence to determine whether the parties had the capacity to enter into the contract; * ', which could be difficult to establish since both parties never left their own

(reliance on postal rules for

offer and acceptance Offer and acceptance are generally recognized as essential requirements for the formation of a contract (together with other requirements such as consideration and legal Capacity (law), capacity). Analysis of their operation is a traditional appro ...

in the several putative ' might produce different results) * ' might be the most relevant since Arizona is the most closely connected to the substance of the obligations assumed * the

* ', which might have

issues if one of the parties is a

minor Minor may refer to: Common meanings * Minor (law), a person not under the age of certain legal activities. * Academic minor, a secondary field of study in undergraduate education Mathematics * Minor (graph theory), a relation of one graph to an ...

'

' (

: ''law of the fatherland'', in modern usage, ''

nationality law Nationality law is the law of a sovereign state, and of each of its jurisdictions, that defines the legal manner in which a national identity is acquired and how it may be lost. In international law, the legal means to acquire nationality and for ...

''), in

, is the system of

applied to a

if a choice is to be made between two or more laws that would change the outcome.

'

' means, in

British British may refer to: Peoples, culture, and language * British people, nationals or natives of the United Kingdom, British Overseas Territories and Crown Dependencies. * British national identity, the characteristics of British people and culture ...

, the "scene of the event" The phrase comes from the

language, meaning "The place in which". In civil cases, ' refers to "the place where the

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...

arose", that is, the land to which the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person (see below), trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery ...

ed. In criminal cases, it may be used to refer to the scene of the crime. It may also be used, more generally, as any place mentioned, that is, the

or place mentioned.Bartleby's
citing E. Cobham Brewer, Dictionary of Phrase and Fable (1898).

References

External links

The Rome II Regulation
relating to ''{{lang, la, Lex loci protectionis'' Latin legal terminology Conflict of laws

General principles

'

'

'

'

'

'

'

British legal tradition

'

'

' (Schutzlandprinzip)

' (or ')

'

'

'

See also

References

External links